Citation NR: 9626025
Decision Date: 09/17/96 Archive Date: 09/26/96
DOCKET NO. 95-10 652 ) DATE
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On appeal from the
Department of Veterans Affairs Medical & Regional Office
Center in Fargo, North Dakota
THE ISSUE
Entitlement to service connection for residuals of Agent
Orange exposure claimed as thrombocythemia previously
diagnosed as idiopathic thrombocytosis.
REPRESENTATION
Appellant represented by: Minnesota Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
The veteran served on active duty from January 1964 to
December 1967.
The claims file contains a report of a rating decision dated
in August 1985 wherein entitlement to service connection for
idiopathic thrombocytosis, claimed on the basis of Agent
Orange exposure, was denied on a direct service incurrence
basis in view of its being a constitutional or developmental
abnormality.
On file is an October 1991 rating decision wherein the issue
of entitlement to service connection for idiopathic
thrombocytosis was deferred pending revisions of regulations
pertaining to adjudication of Agent Orange exposure claims.
The current appeal arose from a March 1994 rating decision of
the Department of Veterans Affairs (VA) Medical and Regional
Office Center (M&ROC) in Fargo, North Dakota. The M&ROC
denied entitlement to service connection for residuals of
Agent Orange exposure claimed as idiopathic thrombocytosis.
The M&ROC affirmed the denial of entitlement to service
connection for idiopathic thrombocytosis subsequently
diagnosed as thrombocythemia on the basis of Agent Orange
exposure when it issued rating decisions in April and June
1995.
The case has been forwarded to the Board of Veterans’ Appeals
(Board) for appellate review.
The raised issue of whether new and material evidence has
been submitted to reopen a claim of entitlement to service
connection for thrombocythemia previously diagnosed as
idiopathic thrombocytosis on a direct service incurrence
basis is referred to the M&ROC for initial consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his thrombocythemia previously
diagnosed as idiopathic thrombocytosis resulted from his
exposure to Agent Orange in service, thereby warranting
entitlement to a grant of service connection. The Board is
asked to consider the private medical extract submitted in
support of the claim for compensation benefits.
It is argued that VA has a duty to assist the veteran in his
appeal by obtaining a medical opinion as to whether his
thrombocythemia previously diagnosed as idiopathic
thrombocytosis is related to his exposure to Agent Orange in
service. It is requested that additional VA medical records
dated in 1985 and 1994 be obtained and associated with the
claims file prior to adjudication of the appeal.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for service
connection for residuals of Agent Orange exposure claimed as
thrombocythemia previously diagnosed as idiopathic
thrombocytosis is not well grounded.
FINDING OF FACT
The claim for service connection for residuals of Agent
Orange exposure claimed as thrombocythemia previously
diagnosed as idiopathic thrombocytosis is not supported by
cognizable evidence showing that the claim is plausible or
capable of substantiation.
CONCLUSION OF LAW
The claim for service connection for residuals of Agent
Orange exposure claimed as thrombocythemia previously
diagnosed as idiopathic thrombocytosis is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The service medical records contain no finding or evidence of
thrombocythemia previously diagnosed as idiopathic
thrombocytosis.
The veteran’s record of service shows he trained as a
computer technician and served a tour of duty with the United
States Navy in the Vietnam theater of operations.
A VA Agent Orange examination dated in 1985 shows the veteran
had been followed for idiopathic thrombocytosis.
On file are VA outpatient treatment reports dated during
early to mid 1990’s showing the veteran was followed by VA
for thrombocythemia previously diagnosed as idiopathic
thrombocytosis.
In May 1995 the veteran submitted a private medical extract
pertaining to Hodgkin’s disease which incudes a notation that
thrombocytosis is characteristic of active, symptomatic
Hodgkin’s disease.
Analysis
Under applicable law, a veteran is entitled to service
connection for a disease or injury incurred in or aggravated
while in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303 (1995).
If a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected...even though there is no record of such
diseases during service...chloracne or other acneform disease
consistent with chloracne, Hodgkin’s disease, multiple
myeloma, non-Hodgkin’s lymphoma, porphyria cutanea tarda,
respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea), or soft-tissue sarcoma (other than osteosarcoma,
chondrosarcoma, Kaposi’s sarcoma, or mesothelioma).
38 C.F.R. § 3.309(e) (1995).
A threshold question to be answered is whether the veteran
has presented a well grounded claim; that is, one that is
plausible or capable of substantiation. See Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need
not be conclusive, it must be accompanied by supporting
evidence. An allegation alone is not sufficient. See Tirpak
v. Derwinski, 2 Vet.App. 609, 611 (1992).
Section 5107 of title 38, United States Code unequivocally
places an initial burden upon the claimant to produce
evidence that his claim is well grounded; that is, that the
claim is plausible. See Grivois v. Brown, 6 Vet.App. 136,
139 (1994); see also Grottveit v. Brown, 5 Vet.App. 91, 92
(1993). Because the veteran has failed to meet this burden,
the Board finds that his claim for service connection for
residuals of Agent Orange exposure claimed as thrombocythemia
previously diagnosed as idiopathic thrombocytosis is not well
grounded and should be denied.
Where the determinative issue involves causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is possible or plausible is required. See Murphy. The
claimant does not meet this burden by merely presenting his
lay opinion because he is not a medical health professional
and does not constitute competent medical authority. See
Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently,
his lay assertions cannot constitute cognizable evidence, and
as cognizable evidence is necessary for a well grounded
claim, see Tirpak, the absence of cognizable evidence renders
the veteran’s claim not well grounded.
Turning to the veteran’s claim for service connection for
residuals of Agent Orange exposure claimed as thrombocythemia
previously diagnosed as idiopathic thrombocytosis, the Board
notes that the veteran has not presented any competent
medical evidence showing that he currently has one of the
disorders reported above which are recognized by VA as linked
to exposure of veterans to Agent Orange or herbicide agents
in service. The VA medical treatment reports on file are
negative for Hodgkin’s disease, a disorder recognized by VA
as linked to exposure of veteran’s to Agent Orange in
service. The private medical extract pertaining to Hodgkin’s
disease is not determinative as to the issue on appeal as it
merely provides information with respect to a disorder which
has not been diagnosed. Thrombocythemia previously diagnosed
as idiopathic thrombocytosis is not a chronic acquired
disorder for VA compensation purposes which has been linked
to exposure of veterans to Agent Orange in service.
In summary, the Board finds that the veteran does not have a
lung or skin disorder for VA compensation purposes linked to
whatever exposure he may have had in service. If there is no
evidence of any current disability associated with events in
service, there can be no well grounded claim. See Rabideau
v. Derwinski, 2 Vet.App. 141, 144 (1992); see also Brammer v.
Derwinski, 3 Vet.App. at 225 (1992) (in absence of a current
disability, there can be no valid claim for service
connection). As no well grounded claim has been presented,
there is no duty to assist the veteran further; hence, the
request for association with the claims file of additional
medical records and a medical opinion is not a competent one.
Therefore, it is the judgment of the Board that the veteran
has failed to meet his initial burden of submitting evidence
of a well grounded claim for entitlement to service
connection for residuals of Agent Orange exposure claimed as
thrombocythemia previously diagnosed as idiopathic
thrombocytosis. If a claim is not well grounded, the Board
does not have jurisdiction to adjudicate the claim. See
Boeck v. Brown, 6 Vet.App. 14, 17 (1993).
In reaching this determination the Board recognizes that this
issue is being disposed of in a manner that differs from that
used by the M&ROC. The Board has, therefore, considered
whether the veteran has been given adequate notice to
respond, and if not, whether he has been prejudiced thereby.
See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In light
of the veteran’s failure to meet his initial burden in the
adjudication process, the Board concludes that he has not
been prejudiced by the decision to deny his claim. In such a
situation, the Board is not denying service connection on the
merits, but rather is finding that the veteran failed to meet
his obligation of presenting a claim that is plausible, or
capable of substantiation, at this time.
The Board views the discussion set forth above as sufficient
to inform the veteran of the elements necessary to complete
his application for service connection for residuals of Agent
Orange exposure, claimed as thrombocythemia previously
diagnosed as idiopathic thrombocytosis. 38 U.S.C.A.
§ 5103(a) (West 1991); see Robinette, 8 Vet.App. at 77-8; see
also Isenhart v. Derwinski, 3 Vet.App. 177, 179-80 (1992) (VA
has a duty to advise claimant of evidence required to
complete application).
ORDER
The veteran not having submitted a well grounded claim of
entitlement to service connection for residuals of Agent
Orange exposure claimed as thrombocythemia previously
diagnosed as idiopathic thrombocytosis, the claim is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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